Legislation signed to update legal definition of consent

By Megan Gannon
Under current Alaska state law, it’s not enough for a victim of a sexual assault to say “No” to prove that consent wasn’t given. The use of force or the threat of death or physical injury must be involved in the crime. That will change come January.
Last Thursday, July 28, Gov. Mike Dunleavy signed a new law that updates the legal definition of consent in sexual assault cases.
House Bill 325 defines consent as “a freely given, reversible agreement specific to the conduct at issue by a competent person.” In this case, “freely given” means that “agreement to cooperate in the act was positively expressed by word or action.”
“Finally, no will mean no,” Rep. Sara Rasmussen (R-Anchorage) said in a statement. “I hope this sends a clear message that rape and sexual assault will no longer be tolerated in our state.”
Rep. Geran Tarr (D-Anchorage) had initially introduced legislation updating the consent law as House Bill 5 in an effort to address the systemic problem of sexual assault in Alaska, which has the highest rate of rape in the nation. On the last day of the legislative session in May, Tarr’s law was included as an amendment to House Bill 325, which was sponsored by Rasmussen and passed.
Tarr had been advocating for the change because Alaska law regarding sexual assault did not have a definition of consent—only a definition of “without consent,” which, she told The Nome Nugget last year “fundamentally seems wrong.” For four decades, “without consent” in Alaska has meant that an individual was coerced by use of force or fear of death or injury. “Without consent” could also apply to cases where the person is incapacitated.
Nome advocates Lisa Ellanna, Niviaaluk Brandt and Panganga Pungowiyi have been active in Nome to address law enforcement’s failures in the past to investigate sexual assaults in Nome. “I received a phone call from Representative Geran Tarr (Anchorage) back in 2019,” remembers Lisa Ellanna. “At the time, she was convening meetings and having conversations all over the state, with advocates, survivors, public safety and service providers, regarding how Alaska Sexual Assault laws could be improved. We spent two hours on the phone talking about the realities of how the legal system engages survivors, and how things could be made better. We talked about the root of it all... Alaska’s laws on consent, or lack of any definition of consent.”
Ellanna said Tarr worked with hundreds of Alaskans, making sure their voices and concerns were heard and put into the language of House Bill 5.
Over the next few years, the Nome group of advocates continued to address legislators through committee meetings, testifying in support of House Bill 5, which unanimously passed during this year’s session, after being incorporated into Representative Sara Rasmussen’s House Bill 325.
At last week’s signing ceremony Ellanna, her daughter Nivi Brandt and Pungowiyi were present.
“Thank you Governor Dunleavy, and thank you Representative Tarr for the opportunity to share a few thoughts,” Ellanna said at the ceremony. “First let me say that I am speaking on behalf of many survivors that have courageously spoken up and shared their stories at great risk to themselves, so that others can have justice. This legislation is one of the most important steps Alaska has taken toward insuring justice for survivors of domestic violence and sexual assault. I commend the hard working legislators for hearing our voices, coming together and doing the important work to make these long-overdue laws a reality. Thank you.”

Prosecution
To prosecute a sexual assault under the current state laws, “you’re looking for more than just someone saying ‘No,’ although that certainly can be part of the evidence,” said Nome District Attorney John Earthman. “You’re looking for some type of threat, some kind of harm, some type of injury, some type of force.”
Establishing a positive definition of consent is a major shift, but Earthman told The Nome Nugget that as of now, it is difficult to predict how the law will affect how cases play out in the future.
“This expands the scope,” Earthman said. “There will be more convictions that fall under this new definition. But these are still going to be tough cases, period. The burden of proof is always going to be high.”
Earthman explained that in most sex crimes, the decisive issue is usually not disagreement over the physical act that occurred, but rather proving whether the assailant coerced the victim, or knew they were passed out or heavily intoxicated, for example. With the new law, Earthman said, “the big investigation, evidentiary and proof issues are going to be what communication preceded or was going on at the time of the misconduct?”
He added that from a practitioner’s point of view, the new language could change the way prosecutors deal with instances of groping, where touching is not preceded by any freely given agreement or assent. “Over the years, we’ve always had a problem with groping cases,” Earthman said. He said that a harassment statute had been amended to deal with groping, but now, groping has essentially gone from a misdemeanor to a felony. “We will definitely get a couple of those a year, so that’s a big change.”
The new law does not take effect until January and Earthman said his office still has “tons of cases” to resolve under the old definitions. As part of their preparations for the changes, Earthman and other prosecutors will attend a statewide training in October.
“You can be sure we’re going to be spending quite a bit of time with officers—NPD and the troopers here—going over what the new statutes mean,” he said. “It’s going to affect the evidence we’re seeking, the questions that are going to be asked. It’s a big project.”
House Bill 325 also accomplishes a few other objectives related to crime: It mandates that rape kits must tested within six months as opposed to one year. It codifies revenge porn as a domestic violence crime. It requires those seeking a name change to alert the courts about criminal charges, and parole, probation or sex offender status. The law also revokes teaching certificates from those with child pornography charges.